By MARK PEARSON Follow @Journlaw
The term ‘rogue juror’ has been used widely and pejoratively to describe a range of juror actions running counter to judicial directions to restrict their inquiries and communications about a case to the court room and the jury room.
I was tasked with taking a close look at the phenomenon for our collaborative research project conducted recently to the Standing Council on Law and Justice via the Victorian Attorney-General and drafted a section around the following cases. Our full report – including elaboration on this material – can be viewed here. [Johnston, J., Keyzer, P., Holland, G., Pearson, M., Rodrick, S., and Wallace, A. (2013). Juries and Social Media. A Report Prepared for the Victorian Department of Justice. Centre for Law, Governance and Public Policy, Bond University.]
While all such incidents involve jurors venturing beyond the courtroom in their communications during a trial, not all their actions are prejudicial to a trial and can be viewed on a continuum. At one extreme are serious transgressions such as a juror’s ‘friending’ of the accused on Facebook (as in was A-G v Fraill [2011] EWCA Crim 1570). At the other extreme are actions that still risk being counter-productive, but are far from ‘roguish’ behaviour and may well stem from a desire on the part of jurors to better perform their role. For example, jurors who search the Internet for definitions of terms they have been asked to consider are likely indulging in their normal method of research and inquiry and might consider such actions as fastidious rather than inappropriate. Between these poles on the continuum are a range of behaviours classified and exemplified here through recent cases in Australian and other jurisdictions.
In 2010 Reuters Legal, using data from the Westlaw online research service, compiled a tally of reported US decisions where judges granted a new trial, denied a request for a new trial, or overturned a verdict, in whole or in part, because of juror actions related to the Internet. They identified at least 90 verdicts between 1999 and 2010 challenged over juror Internet misconduct. They counted 21 retrials or overturned verdicts in the 2009-2010 period (Grow, 2010).
The Law Commission (2012) (p. 62) identified at least 18 appeals in the UK since 2005 related to juror misconduct during criminal trials, some of which involved Internet access or social media use. The section below is an attempt to classify these types of cases, with examples, according to their level of potential prejudice to a trial, although this is not a perfect science and experts will inevitably differ in their opinions on this.
Jurors using social media to communicate with parties to the case
The most famous case of this type was A-G v Fraill [2011] EWCA Crim 1570, [2011] 2 Cr App R 21. Joanne Fraill, 40, was sentenced to eight months in jail by London’s High Court in 2011 for exchanging Facebook messages with the accused in a drug trial while she was serving on the jury. She also searched online for information about another defendant while she and the other jurors were still deliberating. All this went against clear instructions from the judge to jurors to stay away from the Internet.
In June 2010, the West Virginia Supreme Court of Appeals granted a new trial to a sheriff’s deputy convicted of corruption, after finding that a juror had contacted the defendant through MySpace. (Grow, 2010).
Jurors commenting on social media during the trial
Harvard’s Digital Media Law Project recorded the case of attorney Frank Russell Wilson who was suspended from the Bar for 45 days for blogging about a burglary trial while serving as a juror. He had failed to disclose to the court that he was a lawyer (California Bar v. Wilson DMLP 1/23/09) .
An erstwhile Californian Superior Court Judge was called for jury duty in a murder case, and proceeded to email 22 fellow judges with progress reports on his experiences. His first e-mail stated: “Here I am, livin’ the dream, jury duty with Mugridge [the defense lawyer] and Jenkins [the prosecutor].” (Sweeney, 2010).
A juror used his smartphone to send eight tweets from an Arkansas case brought by investors against a company manufacturing building materials. He tweeted: “oh and nobody buy Stoam [the building product]. Its bad mojo and they’ll probably cease to exist, now that their wallet is 12 m lighter.” (Sweeney, 2010)
Tweets from the handle @JohnnyCho in 2010 boasted the owner was in a jury pool in Los Angeles Superior Court. He posted: “Guilty! He’s guilty! I can tell!” He was identified through his Twitter profile to be Johnny Cho, director of communications at a Los Angeles entertainment lighting company. The accused in the case was convicted and the court took no action against Cho (Grow, 2010).
Jurors commenting on blogs or social media after a trial has concluded
In Commonwealth v. Werner 81 Mass. App. Ct. 689 (2012) Appeals Court of Massachusetts, Plymouth, February 1, 2012 a variety of juror online behaviours were exhibited, including three jurors friending each other and two jurors posting comments to Facebook about their jury service. One also blogged about the case after the trial. The Appeals Court refused to set aside the conviction on this basis because of overwhelming evidence of the accused’s guilt.
Jurors using social media to seek responses or advice about the case
A UK juror was dismissed from a child abduction and sexual assault trial after she asked her Facebook ‘friends’ to help her decide on the verdict. “I don’t know which way to go, so I’m holding a poll,” she wrote. This was discovered prior to the jury starting its deliberations (Sweeney, 2010)
Jurors ‘friending’ each other on Facebook during trial
Retired Circuit Court judge Dennis M. Sweeney told the Maryland State Bar Association of an episode during the political corruption trial of Baltimore Mayor Sheila Dixon, over which he presided in 2009. Five jurors had ‘friended’ each other on Facebook and had mentioned the case in their postings, despite his explicit direction not to use Facebook (Sweeney, 2010). After he admonished them, a young male juror posted on his Facebook page, “F— the Judge.” Judge Sweeney said he asked the juror about the offensive comment and was told: “Hey Judge, that’s just Facebook stuff.” [Westlaw News & Insight website, 2010]
Given it is common behaviour among social media for people to ‘friend’ those with whom they interact in many situations, the challenge is for the courts to distinguish the often close relationships formed during an intense jury trial from other social contexts if they wish to establish juror duty as an exception to this common practice.
Jurors searching the Internet for information on the accused (“Trial by Google”)
The UK Attorney-General used the expression ‘Trial by Google’ in a recent speech to describe jurors’ use of Internet search tools and social media to conduct their independent investigations into a case (Grieve, 2013). He conveyed a dim view of the practice and cited instances where it had resulted in contempt convictions, including Attorney General v Dallas [2012] EWHC 156. There, a female juror was sentenced six months’ jail for contempt of court for conducting research on the Internet, including definitions of the word ‘grievous’ and a newspaper report of an earlier rape allegation against the accused, and had shared this with fellow jurors. The judgment [at http://www.bailii.org/ew/cases/EWHC/Admin/2012/156.html] provides an extended account of how the British courts brief juries about Internet use and manage transgressions.
A US District judge in Florida ordered the search of a former juror’s computer hard drive in 2013 after the juror revealed she had done Internet research each evening while hearing the federal criminal drug trial of reggae star Buju Banton. The order specifically asked whether the following words had been searched: “Pinkerton. Doctrine. Mark. Anthony. Myrie. Buju. Banton. Music. Reggae. Gun. Charge. Guilt. Verdict. Mistrial. Conspiracy. Cocaine. Narcotic. Drug. Possession. Hung. Jury.” The juror had told a newspaper: “I would get in the car, just write my notes down so I could remember, and I would come home and do the research.” (Ryan, 2013)
Jurors searching the Internet to better inform their role
In Benbrika v. The Queen [2010] [2010] VSCA 281(http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2010/281.html) the Victorian Court of Appeal affirmed trial judge’s (Bongiorno, J.) handling of a situation where jurors had used Internet sites including Wikipedia and Reference.com seeking definitions of terms related to the terrorism trial (definitions the judge said were not substantially different from those stated in court). The Appeal court said the trial judge had found that “it was distinctly possible that they had interpreted his directions as meaning that they should not seek information about the case, rather than using the Internet for more general purposes” (at para 199). They noted the important difference between this kind of search and searching for “information that is both inadmissible at trial, and prejudicial to the accused”, which might prompt the discharge of a jury (at para 214).
However, in the US similar behaviour was enough for a Washington State Superior Court judge to declare a mistrial in a child sex case after a juror admitted researching on the Internet about witness coaching (Hefley, 2012).
Also in the US, Maryland’s Court of Special Appeals, overturned a murder conviction because a juror had searched Wikipedia for the terms “livor mortis” and “algor mortis” on and had taken printouts to the jury room, later discovered by the bailiff. The juror did not consider the action wrong: “To me that wasn’t research. It was a definition.” (Sweeney, 2010).
Jurors as citizens engaging in their routine social media behaviour during a trial
As social media becomes a part of everyday life, the courts are encountering the fact that ordinary citizens have adopted a routine use of social media which they carry into the court room. A visitor to the District Court in Sydney used a cellphone to take a photo of a family friend who was sitting in a jury panel – common social behaviour in other public places (Jacobsen, 2011). But she was charged with contempt and was fingerprinted, her phone was seized and she was granted bail but the charge was later dropped and signs were erected in the courthouse warning that no photography was allowed.
[Other cases of inappropriate access by British jurors include the following cited by the Law Commission (2012): Karakaya [2005] EWCA Crim 346, [2005] 2 Cr App R 5; Smith [2005] EWCA Crim 2028; Hawkins [2005] EWCA Crim 2842; Pink [2006] EWCA Crim 2094; Marshall [2007] EWCA Crim 35, [2007] Criminal Law Review 562; Fuller-Love [2007] EWCA Crim 3414; H [2008] EWCA Crim 3321; Thakrar [2008] EWCA Crim 2359, [2009] Criminal Law Review 357; White [2009] EWCA Crim 1774; Reynolds [2009] EWCA Crim 1801; Richards [2009] EWCA Crim 1256; Gibbon [2009] EWCA Crim 2198; Bassett [2010] EWCA Crim 2453; Thompson [2010] EWCA Crim 1623, [2011] 1 WLR 200; McDonnell [2010] EWCA Crim 2352, [2011] 1 Cr App R 28; Mpelenda [2011] EWCA Crim 1235; Morris [2011] EWCA Crim 3250; Yu [2011] EWCA Crim 2089; Starling [2012] EWCA Crim 743; Gul [2012] EWCA Crim 280, [2012] 3 All ER 83.]
References
Grow, B. (2010, December 8). ‘As jurors go online, US trials go off track.’ Reuters. Available: http://www.reuters.com/article/2010/12/08/internet-jurors-idUSN0816547120101208
Grieve, D. (2013, February 6). ‘Trial by Google? Juries, social media and the Internet. Speech by the Attorney-General at the University of Kent. Available: https://www.gov.uk/government/speeches/trial-by-google-juries-social-media-and-the-internet
Hefley, D. (December 12, 2012). ‘Juror’s ‘research’ forced mistrial in child rape case’, HeraldNet. Available: http://www.heraldnet.com/article/20121212/NEWS01/712129975?page=single
Jacobsen, G. (2011, September 8). ‘A quick click or two in court lands a young woman in the nick’, Newcastle Herald. Available: http://www.theherald.com.au/story/936338/a-quick-click-or-two-in-court-lands-a-young-woman-in-the-nick/
Johnston, J., Keyzer, P., Holland, G., Pearson, M., Rodrick, S., and Wallace, A. (2013). Juries and Social Media. A Report Prepared for the Victorian Department of Justice. Centre for Law, Governance and Public Policy, Bond University. Available: http://www.sclj.gov.au/agdbasev7wr/sclj/documents/pdf/juries%20and%20social%20media%20-%20final.pdf
Krawitz, M. (2012). ‘Guilty as Tweeted: Jurors using social media inappropriately during the trial process’. Available: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2176634
Law Commission (2012). Consultation Paper No 209 Contempt of Court. Law Commission, London. Available: http://lawcommission.justice.gov.uk/docs/cp209_contempt_of_court.pdf
Ryan, P. (2013, March 5). ‘Judge wants to know if Banton juror typed any of these 21 words’. Tampa Bay Times. Available: http://www.tampabay.com/news/courts/criminal/judge-wants-to-know-if-banton-juror-typed-any-of-these-21-words/2107088
Sweeney, D.M. (2010). ‘The Internet, social media and jury trials: lessons learned from the Dixon trial’. Address to the litigation section of the Maryland State Bar Association, April 29, 2010. Available: http://juries.typepad.com/files/judge-sweeney.doc
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Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.
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